Litigious Arbitration: The African Lawyer and His Many Hats by Adebayo Adenipekun, SAN, FCIArb*

20 Sep 2018 7:30 AM |
Anonymous

Litigation is the commonest legal practice area in Africa. In Nigeria, for example, people here associate lawyers solely with litigation and disputes. As a result, litigation has come to be viewed as a rough venture, a contact sport. The tactics employed by lawyers in litigating disputes – the evisceration of witnesses under cross-examination without care for boundaries, the willingness to foray into shameful and scandalous questions and the use of a whole range of guerrilla tactics – further serve to smear the image of the processto the potential litigant. There are also personal religious and cultural beliefs that precipitate either total reluctance to initiate a court process or real unwillingness to invoke the court against a class of persons. Add to that the fact that much like a war, the only thing that is certain of the timing of a court action is the date of commencement. It is anybody’s guess how long hostilities will last. In sum, parties are loathe to litigate against persons with whom they would desire future timely relations.

On this score arbitration has strong appeal. Arbitral users can rest assured comforted by the confidentiality of arbitration. A witness may do badly in a reference and not have to worry about the public impact his testimony will have on the share price of his company. Scandalous personal details elicited under cross-examination stay within the knowledgeof the participants at the reference and do not constitute indelible public record. This has led to the view that arbitration, as opposed to litigation is likelier to elicit frank and honest testimony. On a commercial plane, the parties can sort out their differences quickly and return to their supply arrangement, joint venture or concession.

Enter the lawyer. Some have bemoaned the influx of legal practitioners into arbitration with others expressly accusing lawyers of ruining arbitration. One author takes the view that the lawyer’s assumption that qualification to practice law is an automatic qualification to practice arbitration is responsible for indiscriminate set-aside applications that trail awards and legalese creeping into arbitration practice. Confidentiality in arbitration is both an advantage to the process and in the hand of the determined assailant, a bane of the process. Lawyers and party representatives have taken the status of arbitrators as non-judicial officers as a license to be offish, confrontational, condescending and downright impolite to arbitrators. With the absence of timeline default penalties in arbitration, lawyers have bogged down arbitrations with lethargic representation and compelled arbitrators to decide the reference according to their own timetables. As there are often no financial or professional punishments for late filings and deadline indiscipline, it has been easy for lawyers to casually seek timeline extensions anchored in the nebulous “interest of justice”.

A lawyer with his training and orientation is definitely a hard disciple to proselyte in arbitration. He will scrutinise every procedural order, query every direction and doubt every award that is unfavourable. If he does so privately, the reference may be safe. But when he, wearing his litigator’s hat, assumes that the unlimited jurisdiction of the High Court extends to making that court an appellate tribunal to arbitral tribunals, the reference is in jeopardy. Nigeria recently made the news in arbitral circles when the Court of Appeal upheld the power of a High Court to stay proceedings of international arbitration. Without prejudice to that decision’s validity, with that decision in the hand of the litigious Nigerian lawyer, international references are now fair game and in the crosshairs. Already, lawyers have “appealed” procedural directions deferring objections, apportioning costs for unforeseen procedural deviations and refusing unwarranted procedural extensions. The lawyer’s inability to drop the litigator’s hat in arbitration can undermine the user’s legitimate expectations of award finality.

Nigerian litigious practice has received its share of criticisms relating to the taking of evidence. On the one hand, there is the complaint that the rules of evidence are not robust enough to capture all the forms of evidence that can be produced today, that the courts are not equipped to perceive, deal with, archive and handle evidence and that the arbiters are themselves not equipped to interact with modern day evidence. And there is another criticism of the process – that the codified rules of evidence perpetuate technical justice and that litigants are at the mercy of a legal system that exists mainly to exclude evidence, than to take evidence. While the Nigerian Evidence Act does not apply to arbitral references and states so clearly in Section 256(1), this has not closed the door to all sorts of evidentiary objections in references. In references, lawyers have invoked the litigious principle of demonstration of documents that stipulates that all documents must be read out to the extent of their utility at hearing and argued that an arbitrator must not study exchanged documents in private. Lawyers have argued that certain documents must be certified by public authority or that as registrable instruments, they must proceed from a certain source and have certain endorsements. These submissions, which have no place in arbitration, have delayed hearings and scuttled references. Worse, when convinced that these rules should have applied to awards, submissions like these have frustrated awards and prevented their enforcement within the limitation period.

Imagine that a reference that was supposed to be confidential so as to protect the facts and evidence in it is submitted to the public-record Court (with copious reproductions of its proceedings and a robust narration of the same confidential facts) in a bid to set an order or award aside. Imagine that a reference that parties opted for to ease the taking of evidence is scuttled by evidentiary objections. Imagine that a reference that parties agreed to for its speedier course is delayed by numerous guerrilla tactics and converted to litigation only to later (post-award) be subjected to the same multi-tier litigation that parties opted out of to start with. Interestingly, the courts, borrowing a leaf from arbitration, are devising means to attend to cases with despatch and interpret codified evidentiary rules more liberally with encouraging results. The ironic result is, suits imitate arbitration while arbitration, by the conduct of litigious counsel, becomes litigious.

Arbitrators have to take a firmer stance with lawyers and should be more disposed to referring flagrant, deliberate disciplinary breaches to the relevant regulator. It is also important to modernise the laws. The question of what the evidentiary/procedural rules applicable to a reference would be is easily resolved by a modernised body of arbitration rules under the Arbitration and Conciliation Act. Solicitors and lawyers who are in the position to draft arbitration clauses can envisage some of these challenges and stipulate the application of certain accepted and functional rules. Most of all, the automatic arbitration competence of lawyers is already a proven fallacy to arbitrators although it remains unknown to the users who repeatedly brief these lawyers. The arbitration education of lawyers is thus mandatory for the survival of the practice in Africa. Efforts, intended and otherwise, to popularise and standardise the practice of arbitration in Africa such as the establishment of the Association of African Arbitrators and the publication of this newsletter are a welcome development. These publications will expose the Nigerian lawyer to international best practices in arbitration and finally impress on him the difference between the practice and litigation and the commercial and jurisprudential justifications for that difference. The Nigerian lawyer must learn – or else be compelled to know – that arbitration is not an extension of his litigious practice. He should know when to barge, heel and attack. And he should know that his litigious hat does not suit his arbitral robes.

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